SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [BENTON
COUNTY CIRCUIT COURT, NO. 04CR-07-1642]
Dan Kemp, Chief Justice
Danny Henington brings a second petition to reinvest
jurisdiction in the trial court to file a petition for writ
of error coram nobis. This court denied his first such
petition in 2017. Henington v. State, 2017 Ark. 111,
515 S.W.3d 577 (per curiam), reh'g denied (May
4, 2017), cert. denied, 138 S.Ct. 340 (2017). In the
petition, Henington contends that the State failed to
disclose exculpatory evidence to the defense before trial and
that the trial court erred in the admission of evidence. As
we find no merit to the allegations and further find that
Henington did not exercise due diligence in bringing his
claims, the petition is denied.
Nature of the Writ
petition for leave to proceed in the trial court is necessary
because the trial court can entertain a petition for writ of
error coram nobis after a judgment has been affirmed on
appeal only after we grant permission. Newman v.
State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error
coram nobis is an extraordinarily rare remedy. State v.
Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis
proceedings are attended by a strong presumption that the
judgment of conviction is valid. Green v. State,
2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to
secure relief from a judgment rendered while there existed
some fact that would have prevented its rendition if it had
been known to the trial court and which, through no
negligence or fault of the defendant, was not brought forward
before rendition of the judgment. Newman, 2009 Ark.
539, 354 S.W.3d 61. The petitioner has the burden of
demonstrating a fundamental error of fact extrinsic to the
record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d
Grounds for the Writ
writ is allowed only under compelling circumstances to
achieve justice and to address errors of the most fundamental
nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four
categories: (1) insanity at the time of trial, (2) a coerced
guilty plea, (3) material evidence withheld by the
prosecutor, or (4) a third-party confession to the crime
during the time between conviction and appeal. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38.
2009, a jury found Henington guilty of the rape of a
five-year-old girl in 2007 and was sentenced to 432
months' imprisonment. The Arkansas Court of Appeals
affirmed. Henington v. State, 2010 Ark.App. 619, 378
S.W.3d 196. He subsequently filed in the trial court a
petition for postconviction relief pursuant to Arkansas Rule
of Criminal Procedure 37.1 (2009) that was denied. We
affirmed the order. Henington v. State, 2012 Ark.
181, 403 S.W.3d 55.
Claims for Issuance of the Writ
first ground for issuance of the writ, Henington contends
that the prosecutor committed misconduct and violated
Brady v. Maryland, 373 U.S. 83 (1963), by failing to
engage in the discovery process and disclose all evidence
known to the State that was favorable to the
defense. The mere fact that a petitioner alleges a
Brady violation is not sufficient to provide a basis
for error coram nobis relief. Wallace v. State, 2018
Ark. 164, 545 S.W.3d 767; see also Penn v. State,
282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation
that a constitutional right has been invaded will not suffice
to warrant coram nobis relief). To establish a Brady
violation, the petitioner must satisfy three elements: (1)
the evidence at issue must be favorable to the accused,
either because it is exculpatory or because it is impeaching;
(2) that evidence must have been suppressed by the State,
either willfully or inadvertently; (3) prejudice must have
ensued. Howard, 2012 Ark. 177, 403 S.W.3d 38. The
specific exculpatory evidence that Henington contends was not
disclosed by the State was a police report dated June 26,
2000, that described the investigation of the alleged
molestation of another young girl, D.W. D.W. testified at
Henington's trial in 2009 under the "pedophile
exception" in Arkansas Rule of Evidence 404(b) to the
general rule that evidence of a defendant's prior bad
acts cannot be used to prove that the defendant committed the
charged crime. D.W. testified that Henington had molested her
when she was approximately the same age as the child he was
accused of raping and in a manner similar to the conduct
described by the victim. Henington states that the 2000
report was mentioned several times at trial, but it was never
provided to the defense or introduced into evidence at trial.
He contends that the information in the report differed from
D.W.'s trial testimony and that of her mother and that
the outcome of the trial would have been different had the
defense had the report to use in cross-examining D.W. and her
mother to cast doubt on D.W.'s account of the molestation
and to generally impeach the witnesses. He points out that he
was not charged with any offense with respect to D.W. and
argues that there were many facts that indicate D.W.'s
and her mother's testimony was inaccurate; that is, he
argues that there was no substantial evidence to demonstrate
that he had committed acts with D.W. that were similar to
those acts described by the victim at his trial.
has not established a Brady violation. He concedes
that the report was mentioned at trial; therefore, it cannot
be said that the report was concealed from the defense at the
time of trial. A copy of the 2000 police report could have
been sought out by the defense that was clearly aware of it.
Accordingly, Henington did not meet his threshold burden of
demonstrating a fundamental error of fact extrinsic to the
record that was concealed from the defense. See Williams
v. State, 2017 Ark. 313, 530 S.W.3d 844.
Henington asserts that the writ should issue because he can
prove that he did not molest D.W. and therefore she should
not have been allowed to testify in his trial under Rule
404(b). It appears that the crux of Henington's
allegation is not that there was a true Brady
violation, but rather that he is entitled to issuance of the
writ because the defense did not obtain a physical copy of
the report and use it to challenge witness credibility and
prove that he did not commit a similar offense with D.W.
Regardless of whether the information that Henington refers
to in his petition was, or was not, brought out in
cross-examination, the issue of whether a particular witness
was credible is not, in itself, within the purview of the
writ as a legal remedy. Grady v. State, 2017 Ark.
245, 525 S.W.3d 1. The writ will not lie to retry the
defendant or to reexamine the strength of the evidence
adduced at trial. Carner v. State, 2018 Ark. 20, 535
S.W.3d 634. We have repeatedly held that attacks on witness
credibility and the sufficiency of the evidence are outside
the scope of a coram nobis proceeding. Jackson v.
State, 2017 Ark. 195, 520 S.W.3d 242.
also contends that the trial court made errors in its
admission of evidence at his trial. By its very nature, a
question concerning a trial court's ruling could have
been settled in the trial court and on the record on direct
appeal. Accordingly, the allegation that the trial court made
some mistake in its rulings, including rulings concerning the
admissibility of ...